The Covid-19 pandemic has made remote work and home offices the new normal. Many corporations have already consolidated large corporate headquarter leases to the minimum footprint. The migration of large corporate data centers to Amazon S3 or Azure cloud servers has been going on for the last decade. So where does your critical ESI under hold live now?

The reality is that your custodian’s ESI probably lives in many places simultaneously. Most corporate email and documents will be stored or mirrored in O365 data siloes based on typical policies and default configurations. A fast check by an IT admin or litsupport tech will tell you whether your custodians can and have stored email in local PSTs or documents outside of their OneDrive synchronized folders. Many gaps can be covered with simple logon scripts, access rights or group policy revisions. Remember that IT is responsible for making sure that user ESI is backed up and recoverable. So Legal should have insight and input into changes to support remote workers.

Beyond traditional email/docs, the pandemic has driven an adoption explosion in collaboration technologies such as video conferencing, Teams chat, Slack, Box, etc. Hopefully your IT has a formal policy and process for requesting, approving and managing these technologies. Flat bans do not work. To paraphrase Jeff Goldblum, “Data will find a way.” Your employees need these technologies to function, so Legal needs to know what they are using to collaborate and how it can be preserved, collected and reviewed. If these collaboration mushrooms have propagated over the last six months and are popping up everywhere it may be time for a stakeholder meeting to understand their usage and create a preservation strategy.

Assuming that you now know which of your custodians are working remotely and where their ESI resides, you now need a remote collection strategy for any ESI that has not been mirrored to enterprise/cloud systems. Before you collect, survey and sample. It is time to work smarter, not harder in your collections. Forensic laptop images create data bloat downstream. Shipping collection drives should be your last resort.

Hopefully you can start searching/exporting custodian ESI from O365 and other CMS cloud systems to define relevance criteria and identify potentially relevant local/mobile ESI that is outstanding. I like to start with the key players before we do collection sweeps of lower importance custodians. Counsel always seems to amend criteria or run down new issue rabbit holes as soon as they get their hands on the first ESI collection. So you might as well bake that iterative approach into your strategy to minimize employee impact and costs.

So you have done everything possible and still have local Jabber logs, download directories and more to get from remote custodians. You have also identified several cloud collaboration systems that your custodians used that might be relevant to your matter. Luckily, you have cooperative custodians who turned over their credentials and none based in California or the EU. My eDJ Matrix badly needs to be updated, but it still shows 57 offerings claiming remote collection functionality. Most providers and IT groups use a combination of open source/Microsoft tools and a remote control session to identify and compress the ESI. Upload speeds can be a major issue unless your employees are on fiber internet service. It is good to provide an internet speed test link in early communications with custodians so that you know which may require an external drive to ship in after the collection. That is not practical in ongoing and iterative collection scenarios, so you may want to look at implementing local/cloud backup or archiving products that can throttle bandwidth to not interfere with custodian’s work or Netflix streaming.

Many clients and peers I have spoken with have pretty much put discovery on hold or filed for multiple extensions during this crisis. Courts seem to be very understanding and many have proactively paused matters where time is not sensitive. That short term coping mechanism is fraying as we begin to understand that remote work may be the new normal in the years to come. So it is time to hold a few Zoom/Skype meetings to discuss adapting eDiscovery strategies to accommodate this new normal.

What new ESI systems/sources are you running into during the pandemic? Are you allowing employees to use personal hardware to access their email/docs remotely?

Greg Buckles wants your feedback, questions or project inquiries at Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.

Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer a journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being posted. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations. 


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